Articles Posted in Criminal Law

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Slusser pleaded guilty in 2011 as a felon in possession of a firearm, 18 U.S.C. 922(g), waiving his right to “file any motions or pleadings pursuant to 28 U.S.C. 2255 or to collaterally attack [his] conviction[] and/or resulting sentence,” except challenges involving ineffective assistance of counsel or prosecutorial misconduct. The court determined that he had at least three prior convictions for violent felonies or serious drug offenses and sentenced him to 180 months under the Armed Career Criminal Act (ACCA), noting a 1994 burglary, 2011 delivery of cocaine, and 1999 aggravated assault and burglary. Slusser did not appeal. In 2012, Slusser filed an unsuccessful section 2255 motion, arguing ineffective assistance of counsel and that the prosecutor engaged in misconduct. The Seventh Circuit declined to issue a certificate of appealability. Slusser filed an application in 2016 for authorization to file a second or successive section 2255 motion, citing the Supreme Court's invalidation of ACCA's residual clause in Johnson v. United States (2015). The Seventh Circuit allowed the filing. The district court denied his motion and certified that an appeal would not be taken in good faith. The Seventh Circuit affirmed. In his negotiated plea agreement, Slusser waived his right to argued that his 1999 Tennessee conviction for Class C aggravated assault no longer qualifies as a “violent felony.” View "Slusser v. United States" on Justia Law

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Williams, a CPA, was manager or co-owner of Sexton’s Kentucky companies. Flynn was the office manager. From 2006-2010, they secured loans by misrepresenting the businesses’ assets and the identity of the true borrowers. The total amount disbursed from the banks was $8,160,400. Sexton and Williams submitted applications for higher loan amounts ($13,600,000 and $13,800,000) toward the end of the time period involved, but those funds were never disbursed. In 2016, the three and a bank loan officer were charged with conspiracy to commit bank fraud, 18 U.S.C. 1349 and 18 U.S.C. 1344(1) (Count 1) and bank fraud, 18 U.S.C. 1344(1) and 18 U.S.C. 2. The indictment also alleged forfeiture to the U.S. under 18 U.S.C. 981(a)(1)(C), 982(a)(2)(A), and 28 U.S.C. 2461(c). Sexton pleaded guilty to Count 1. The government moved to dismiss Counts 2–24. Sexton’s PSR gave Sexton a four-level increase for being an organizer or leader under USSG 3B1.1(a); one criminal history point under USSG 4A1.1(c), 4A1.2(m), and 4A1.2(f) for a 2005 California sentence for willful infliction of corporal injury to which Sexton pleaded nolo contendere; and two criminal history points under USSG 4A1.1(d) for committing the instant offense while on probation for the California sentence. Sexton’s guideline imprisonment range was 97–121 months. The court sentenced Sexton to 109 months’ imprisonment. The Sixth Circuit affirmed that sentence and orders that he pay $2,637,058.32 in restitution and forfeit property to the government, including a money judgment of $2,534,912. View "United States v. Sexton" on Justia Law

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Maynard and others stole over 700 pounds of blasting agent from a Revelation Energy job site. He pled guilty to possessing an explosive as a felon, 18 U.S.C. 842(i)(1). Relying on Maynard’s prior convictions for second-degree assault under extreme emotional disturbance in Kentucky and assault during the commission of a felony in West Virginia, the Presentence Report calculated his base offense level under the Sentencing Guidelines as 24. Maynard argued that neither of the two underlying convictions was a “crime of violence.” The court sustained Maynard’s objection to the West Virginia offense but rejected his objection regarding the Kentucky offense and sentenced him to a below-Guidelines 108 months’ imprisonment. The Sixth Circuit affirmed. The Guidelines label as a “crime of violence” any federal or state law offense punishable by more than one year’s imprisonment that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. 4B1.2(a)(1). The court applied a categorical approach and examined Kentucky’s assault under extreme emotional disturbance statute, which requires that the defendant intentionally cause a physical injury in committing the underlying assault. Extreme emotional disturbance does not negate the intent elements of first or second-degree assault under Kentucky law. View "United States v. Maynard" on Justia Law

Posted in: Criminal Law

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Fleming pleaded guilty to possessing cocaine with intent to distribute, 21 U.S.C. 841(a)(1), stipulating that his base offense level would be 24, based on his possession of at least 500 grams but less than 2 kilograms of cocaine. The United States Sentencing Guidelines recommended a sentence of 60 months’ imprisonment. At his sentencing hearing, the district court doubled that, based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl. Neither the article, nor the underlying Ohio state report on which it was based, were provided to the parties before the sentencing hearing. Nor was Fleming notified before the hearing that the court planned to consider the article or the issues it addressed. The Sixth Circuit vacated the sentence as procedurally unreasonable because the court denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence. View "United States v. Fleming" on Justia Law

Posted in: Criminal Law

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Montgomery pled guilty as a felon in possession of ammunition. He was sentenced to three years’ imprisonment plus three years of supervised release. Months after his release the government alleged that Montgomery had been charged with domestic assault and had “possessed/used a controlled substance (marijuana).” The government recommended that Montgomery’s supervised release be revoked with a suggested imprisonment range of 21–27 months, classifying his possession offense as a Grade B violation. Montgomery failed to appear. The court ordered his arrest. The government amended its Petition, adding driving with a suspended/revoked license and theft of property less than $500. Montgomery was arrested and argued that his simple possession conviction was a Grade C violation because it is punishable by less than a year in prison, although 21 U.S.C. 844 provides for an enhanced maximum sentence of two years if the defendant has a prior drug conviction. He claimed that 21 U.S.C. 851 required the government to charge him under section 844 and enhance his sentence under section 851(a)(1) in order to take into account his prior convictions. Because Montgomery was not charged under section 844, he argued, the court could only look to the “basic” one-year sentence for simple possession when classifying his violation. The court concluded that Montgomery committed a Grade B violation and sentenced him to 21 months’ imprisonment. The Sixth Circuit affirmed; a defendant need not have been formally charged under section 844 and enhanced under section 851, because whether the defendant experienced a separate formal prosecution at all for the conduct is irrelevant. View "United States v. Montgomery" on Justia Law

Posted in: Criminal Law

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The Warden appealed the district court's conditional grant of petitioner's application for a writ of habeas corpus under 28 U.S.C. 2254 and petitioner cross-appealed the denial of relief on several alternative claims. The Sixth Circuit held that the Michigan courts adjudicated petitioner's claims on the merits, so the Antiterrorism and Effective Death Penalty Act (AEDPA) elevated standard of review applied. The court affirmed the district court's grant of habeas relief based on petitioner's Fifth and Sixth Amendment claims where the state conceded that petitioner's statements to the police were obtained in violation of his Fifth Amendment rights and the error was not harmless, and trial counsel's failure to challenge the admission of the statements constituted ineffective assistance of counsel. The court also held that the prosecutor's comments on petitioner's post-Miranda silence violated due process; reversed the denial of petitioner's Doyle claim; and affirmed the district court's holding that the evidence was sufficient to support defendant's conviction. View "Hendrix v. Palmer" on Justia Law

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The Sixth Circuit reversed the district court's denial of defendant's motion to suppress evidence obtained via a search warrant. The court held that the district court erred in denying defendant's motion to suppress where the evidence failed to establish a fair probability that drug activity was occurring at the residence at the time the search warrant was executed. Furthermore, the good faith exception did not apply because no reasonable officer would believe that the affidavit established probable cause to search the residence at the time the affidavit was executed. The court also held that the district court erred in admitting a recorded telephone call because it constituted inadmissible hearsay. Accordingly, the court remanded for further proceedings. View "United States v. Christian" on Justia Law

Posted in: Criminal Law

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Dr. Paulus, a cardiologist at Ashland, Kentucky’s KDMC, was first in the nation in billing Medicare for angiograms. His annual salary was around $2.5 million, under KDMC’s per-procedure compensation package. In 2008, HHS received an anonymous complaint that Paulus was defrauding Medicare and Medicaid by performing medically unnecessary procedures, 42 U.S.C. 1320c-5(a)(1), 1395y(a)(1), placing stents into arteries that were not blocked, with the encouragement of KDMC. An anti-fraud contractor selected 19 angiograms for an audit and concluded that in seven cases, the blockage was insufficient to warrant a stent. Medicare denied reimbursement for those procedures and continued investigating. A private insurer did its own review and concluded that at least half the stents ordered by Paulus were not medically necessary. The Kentucky Board of Medical Licensure subpoenaed records and concluded that Paulus had diagnosed patients with severe stenosis where none was apparent from the angiograms. Paulus had retired; he voluntarily surrendered his medical license. A jury convicted Paulus on 10 false-statement counts and on the healthcare fraud count. It acquitted him on five false-statement counts. The court set aside the guilty verdicts and granted Paulus a new trial. The Sixth Circuit reversed. The degree of stenosis is a fact capable of proof. A doctor who deliberately inflates the blockage he sees on an angiogram has told a lie; if he does so to bill a more expensive procedure, then he has also committed fraud. View "United States v. Paulus" on Justia Law

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Following Columbus, Ohio robberies, the government obtained an arrest warrant against Satterwhite for interstate robbery, 18 U.S.C. 1951; felon in possession of a firearm, 18 U.S.C. 922(g); and brandishing a firearm during a crime of violence, 18 U.S.C. 924(c). Satterwhite was arrested. Pursuant to 18 U.S.C. 3161 (Speedy Trial Act), “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons.” The deadline in Satterwhite’s case was February 22, 2016. The parties filed six joint motions for waiver and to extend the period while the parties discussed a plea agreement. The court granted these motions, extending the time until August 21. On October 7, the government filed an information and an executed plea agreement, including a binding recommended sentence of 240 months. On November 29, Satterwhite was arraigned. The court accepted Satterwhite’s plea and sentenced Satterwhite to 240 months of imprisonment, noting that Satterwhite’s advisory sentencing range was 471 months. Satterwhite did not challenge the untimely filing of the information. The Sixth Circuit affirmed, rejecting an argument that the time limits for the government to file an information or indictment after arresting a defendant are jurisdictional. A defendant who fails to timely move for dismissal on the basis of an untimely indictment waives his right to move for dismissal under the speedy indictment provision. View "United States v. Satterwhite" on Justia Law

Posted in: Criminal Law

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On March 31, 2014, the government obtained a single 30-day electronic surveillance order authorizing the wiretapping of cell phones used by Williams (TT1), and TT2 used by Cooper. The government intercepted Cooper’s TT2 calls for two weeks, including a call on April 12. Cooper made no more calls on TT2; the government confirmed this through a confidential informant on April 14 and ended its TT2 surveillance. On April 16, the government provided the TT2 wiretap recordings to the district court to be sealed. The government did not intercept any conversations from TT1 because Williams had stopped using it. When the government charged Cooper with drug trafficking, he twice unsuccessfully moved to suppress the evidence gathered directly or derivatively from the TT2 wiretap, citing the Fourth Amendment and 18 U.S.C. 2518(1)(c), claiming that the TT2 application did not establish the necessity for the wiretap and that the government did not seal the TT2 recording “immediately” and requesting a “Franks” hearing on his claim that the TT2 application’s supporting affidavit had material misrepresentations and omissions. Cooper entered a guilty plea and was sentenced to 396 months in prison. The Sixth Circuit affirmed, noting that the application included a 52-page affidavit, prepared by a knowledgeable officer, stating that the government had been investigating Cooper and his drug-trafficking organization for six months, during which traditional investigative methods had been attempted. Statements cited by Cooper were not misleading; the government complied with section 2518. View "United States v. Jamal Cooper" on Justia Law

Posted in: Criminal Law